A 14-year-old Santa Rosa girl and her mother claim their constitutional rights as victims were violated when a man who engaged in repeated phone sex with the teen was permitted without their knowledge to plead no contest to related criminal charges in exchange for probation.
The defendant, who was freed from jail in June with credit for the 10 months he already had served, is to be sentenced to probation in the case Thursday unless his victim and her advocates can persuade Judge Gary Medvigy to withdraw his acceptance of the plea.
Their attorney argues that the surprise resolution of the case violated the 2008 California Victims' Bill of Rights Act. The act, known as Marsy's Law, in part guarantees the right of victims be notified and heard during critical stages of criminal proceedings.
In this case, the girl's mother said she learned by reading on The Press Democrat web site that Arnold M. Luz, 46, was headed back out into the world and would escape state prison time, even though she and her daughter met with prosecutors one day earlier and was led to believe he would be sentenced to state prison.
"I don't understand it," the girl's mother said through tears Tuesday. "I feel I was lied to and deceived by officials that I trusted."
Her attorney, Amy Terrible, additionally disputed the prosecutor's license to negotiate a plea in the first place, given legal limitations on plea bargains in serious crimes.
"A plea in California is not final until the time of sentencing, so nothing that has been done cannot be undone at this point," Terrible said.
Luz's defense lawyer, Deputy Public Defender Kristine Burk, argued the contrary, saying Terrible and her clients had no standing to intervene in the sentencing beyond their right to address the court during the hearing.
She said it was the judge who indicated he intended to sentence Luz to probation during a hearing four days before he changed his plea to "no contest," and said a pre-sentencing report produced by the Sonoma County Probation Department agreed probation was an appropriate disposition.
"I don't think that Marsy's Law confers upon anyone the right or the remedy to interfere with and undo a plea agreement that was lawfully achieved in court," Burk said.
Luz, an Alameda resident, was arrested Aug. 10 in the parking lot at Cook Middle School after agreeing to meet the victim, then 13, so he could help her run away from home.
The girl said they had until then been in virtually daily telephone contact after meeting on an adults-only chat line in April or May and exchanging phone numbers.
The teen said she told Luz in the first week that she was only 13, but they engaged in extensive phone sex during the ensuing months that included role-playing and masturbation, though there was no evidence he ever actually touched her.
Then-Deputy District Attorney Rosanne Darling, who initially prosecuted the case as leader of the sexual assault team, submitted a declaration on behalf of the victim and her mother supporting their bid to nullify the plea deal.
Darling wrote that she never contemplated probation as an appropriate resolution to the case and, in fact, charged Luz with special allegations that precluded any outcome but state prison.
The facts of the case, her declaration states, "were particularly frightening" given that Luz "was willing to drive over an hour to pick up a 13-year-old girl at her middle school, after engaging her in lewd and lascivious behavior for over 90 days prior."
Darling, who has since left the district attorney's staff, was on a five-week medical leave in June when Luz's case was set for trial.
She said Chief Deputy District Attorney Bill Brockley appeared in her stead on June 21, at which time he and Burk joined the judge for an off-the-record sidebar hearing during which a plea agreement evidently was discussed.
At its completion, the judge scheduled a hearing for a possible plea change four days later and indicated he would sentence Luz to probation, without state prison time, though he would be required to register as a sex offender, according to court records.
When Darling returned to her job the day before the scheduled hearing, Brockley asked her to attend a meeting with the victim, her mother and a victim advocate to discuss the possibility of plea, Darling's declaration said.
But Darling said the victims were unaware of any prior plea negotiations and the judge's indication of probation. She said she proceeded according to her understanding from previous office communications that any offer would require Luz to plead to two or three counts of child molestation without any promises attached.
During the nearly 30-minute meeting, Brockley never contradicted the position she outlined, never mentioned the sidebar or the judge's indicated sentence of probation, and did not mention his intention to dismiss enhancements that would have prevented Luz from getting probation.
The victim and her mother did not attend the subsequent court hearing, nor did Darling, who was alerted to the outcome by a police detective "expressing frustration and surprise."
"I'm angry," said the victim's mother, who found her lawyer through the National Crime Victim Law Institute. "I need justice for my kid."
Brockley was not available for comment on Tuesday, and Assistant District Attorney Christine Cook said the office would not discuss the case until it was completely resolved.
You can reach Staff Writer Mary Callahan at 521-5249 or mary.callahan@pressdemocrat.com.
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